Citation Nr: 1032721
Decision Date: 08/30/10 Archive Date: 09/08/10
DOCKET NO. 05-06 229 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUE
Whether new and material evidence has been presented to reopen
the claim of service connection for stenosis of the cervical
spine with syringomyelia and residuals of a C4-C6 laminectomy.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Russell P. Veldenz
INTRODUCTION
The Veteran, who is the appellant, served on active duty from
October 1969 to July 1972.
This matter is before the Board of Veterans' Appeals on appeal of
a rating decision, dated in November 2004, of a Department of
Veterans Affairs (VA) Regional Office (RO).
In December 2007, the Veteran appeared at a hearing before the
undersigned Veterans Law Judge. A transcript of the hearing is
in the Veteran's file.
The claim of service connection for a lumbar spine disability has
been raised by the record, which is referred to the RO for
appropriate action.
The reopened claim is REMANDED to the RO via the Appeals
Management Center in Washington, DC.
FINDINGS OF FACT
1. In a rating decision in February 2001, the RO denied the claim
of service connection for stenosis of the cervical spine with
syringomyelia and residuals of a C4-C6 laminectomy; and after the
Veteran was notified of the adverse determination and of his
procedural and appellate rights, he did not perfect an appeal of
the adverse determination.
2. The additional evidence presented since the rating decision
in May 2001 by the RO, denying the claim of service connection
for a stenosis of the cervical spine with syringomyelia and
residuals of a C4-C6 laminectomy, relates to an unestablished
fact necessary to substantiate the claim, and raises a reasonable
possibility of substantiating the claim.
CONCLUSION OF LAW
1. The rating decision in May 2001 by the RO, denying the claim
of service connection for stenosis of the cervical spine with
syringomyelia and residuals of a C4-C6 laminectomy, became final.
38 U.S.C.A. § 7105(c) (West 2002).
2. The additional evidence presented since the rating decision in
May 2001 is new and material, and the claim of service connection
is reopened. 38 U.S.C.A. § 5108 (West 2002).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and
implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to
notify and to assist a claimant in developing information and
evidence necessary to substantiate a claim.
As the application to reopen the claim of service connection for
stenosis of the cervical spine with syringomyelia and residuals
of a C4-C6 laminectomy is resolved in the Veteran's favor, the
only matter disposed of in this decision, further discussion here
of compliance with the VCAA with regard to the claims to reopen
is not necessary.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
New and Material Evidence Claim
Procedural and Factual Background
By a rating decision in May 2001, the RO denied the claim of
service connection for stenosis of the cervical spine because
there was no evidence that the stenosis of the cervical spine
resulted from an in-service motorcycle accident occurring in
August 1970.
After the RO notified the Veteran of the adverse determination
and of his procedural and appellate rights, the Veteran did not
perfect an appeal of the adverse determination and the
determination became final by operation of law. 38 U.S.C.A. §
7105; 38 C.F.R. § 3.104.
The pertinent evidence of record and considered by the RO at the
time of the rating decision in May 2001 is summarized as follows:
The service treatment records show that in service in August
1970, while riding a motorcycle, the Veteran hit an oil slick and
slid into the back of a parked car, suffering an open fracture of
the midshafts of the left tibia and fibula. He also sustained a
tear of the left anterior cruciate ligament and a sprain of the
left medial collateral ligament. There are no other documented
injuries from the motorcycle accident in the service treatment
records.
The records of the police, fire department, and other emergency
responders have not been identified and associated with the file.
After service, in November 1999, the Veteran sought treatment
from a chiropractor, E. M. G., who reported the Veteran's
complaints of neck stiffness. The diagnosis was nonallopathic
lesion of the cervical region. No opinion as to etiology was
offered.
An X-ray in August 2000 showed early degenerative disc disease at
C5-C6 with associated mild hypertrophic changes.
In August 2000, Dr. A. R. reported that the Veteran had bilateral
upper extremity loss of motion, weakness, loss of sensation in an
ulnar nerve distribution, and aching pain. The diagnosis was
degenerative joint disease.
In December 2000, a private MRI showed spinal canal stenosis at
C6-C7. The physician interpreting the MRI also noted a short
segment of increased T2 signal at the C7 level that could
represent a tiny fluid collection indicating a syrinx. No other
definite cord abnormality was identified.
Current Application
Although the prior rating decision of May 2001 by the RO became
final, it may nevertheless be reopened if new and material
evidence is presented.
38 U.S.C.A. §§ 7105(c) and 5108.
Regardless of the RO's characterization of the claim, the Board
is without jurisdiction to consider the substantive merits of the
claim of service connection in the absence of a finding that new
and material evidence has been presented. The Board therefore
must determine whether new and material evidence has been
received to reopen the previously denied claim. Jackson v.
Principi, 265 F. 3d 1366, 1369 (Fed. Cir. 2001).
The Veteran's application to reopen the claim of service
connection was received in March 2004.
As the claim to reopen was received after August 29, 2001, the
current regulatory definition of new and material evidence under
38 C.F.R. § 3.156 applies.
New evidence means existing evidence not previously submitted to
agency decision makers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the time of
the last prior final denial of the claim sought to be reopened,
and must raise a reasonable possibility of substantiating the
claim.
For the purpose of establishing whether new and material evidence
has been submitted, the credibility of the evidence, although not
its weight, is to be presumed. Justus v. Principi, 3 Vet. App.
510, 513 (1992).
In determining whether the evidence is new and material, the
specified basis for the last final disallowance must be
considered. Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir.
1998).
In order that the additional evidence may be considered new and
material under the current regulatory definition of new and
material evidence, the evidence must relate to the basis for the
prior denial of the claim, that is, the lack of evidence between
service and the Veteran's current cervical spine disability.
Additional Evidence and Analysis
The additional relevant evidence presented since the rating
decision in February 2001 consists of the following:
VA records in May 2001 show that the Veteran had a C4-C6
laminectomy for symptoms of cervical stenosis.
In May 2006, a private physician, C. N. B., MD, reported that he
reviewed the Veteran's claim file and the medical literature.
The physician expressed the opinion that the Veteran's neck
problems were likely due to the 1970 accident.
The Board finds that the medical opinion of the private physician
is new and material evidence because the opinion relates to an
unestablished fact necessary to substantiate the claim, that is,
a nexus between the cervical spine disability and service, that
is, the vehicle accident, the absence of which was the reason the
claim was previously denied. 38 C.F.R. § 3.156(a). Accordingly,
the claim is reopened. 38 U.S.C.A. § 5108.
ORDER
As new and material evidence has been presented, the claim of
service connection for stenosis of the cervical spine with
syringomyelia and residuals of a C4-C6 laminectomy is reopened,
and to this extent only the appeal is granted.
REMAND
Because the claim of service connection for service connection
for stenosis of the cervical spine with syringomyelia and
residuals of a C4-C6 laminectomy has been reopened, the claim
must be reviewed in light of all the evidence of record. Before
that, however, additional assistance in developing the facts
pertinent to the claim under 38 C.F.R. § 3.159 is necessary.
During service in August 1970, while riding a motorcycle, the
Veteran hit an oil slick and slid into the back of a parked car,
suffering an open fracture of the midshafts of the left tibia and
fibula. The records of the first responders have not been
obtained.
In August 2008, the Board requested opinions from an orthopedic
surgeon and a neurologist from the Veterans Health Administration
(VHA). The written responses refer to the absence of the initial
records of the accident and treatment, which may have a bearing
on the claim.
In light of the above and as the evidence of record does not
contain sufficient medical evidence to decide the claims, further
evidentiary development is needed under the duty to assist.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran to either submit or
authorize VA to obtain on his behalf the
private records, pertaining to the
motorcycle accident in August 1970 to
include a police report and a report of
the emergency personnel, who treated him
at the scene of the accident, and any in-
patient records from a civilian hospital
before he was transferred to the San Diego
Naval Hospital.
2. After the development requested has
been completed, adjudicate the claim. If
the benefit sought remains denied, furnish
the Veteran and his representative a
supplemental statement of the case and
return the case to the Board.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs